11.  In April 1991 the second applicant entered Austria on a tourist visa. He made two unsuccessful requests for a residence permit (Aufenthaltserlaubnis) in February 1992 and April 1994 respectively. In May 1996 he made a new request for a residence permit, which was granted in July 1996 for a period of two years for the purpose of family reunification with his wife and baby daughter, both of whom lived in Austria. His leave to remain was subsequently extended for successive two-year periods.
12.  From 1991 onwards the second applicant worked for the applicant company.
13.  After the Labour Market Service had advised that an employment permit was required for the second applicant, the applicants lodged a request with the Feldkirch Labour Market Service (Arbeitsmarktservice) on 23 April 1998 for the grant of an employment permit to the applicant company.
14.  On 4 June 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers that year in Vorarlberg had been exceeded and none of the exceptional conditions of s. 4(6) of the above Act were met.
15.  On 18 June 1998 the applicants appealed. They submitted that the second applicant had been living in Austria since 1991 and was a shareholder in the Jenni Montagen OEG company. They claimed that the second applicant had a right to employment in Austria and referred in that connection to the Geneva Refugee Convention, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights. They further referred to the Association Agreement between the European Union and Turkey and submitted that that treaty had to be applied by analogy to their case.
16.  On 22 July 1998 the Vorarlberg Labour Market Service dismissed the applicant company’s complaint and rejected the second applicant’s complaint. It noted that only the applicant company as the proposed employer, not the second applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the second applicant was not a party to the proceedings.
17.  As regards the applicant company’s complaint, it noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. However, throughout the proceedings it had been common ground that the second applicant was not a refugee. The Association Agreement between the European Union and Turkey was not applicable in the present case as the second applicant was not a Turkish national.
18.  On 3 September 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They contested the lawfulness of the fixed maximum quota system and the accuracy of the official statistics according to which the maximum quota had been exceeded. They submitted in that connection that, in view of the number of foreign workers in employment that had been given in the official statistics some months before, the number that was now being quoted could not be correct. They further complained that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded.
19.  They further submitted that the second applicant had a right to take up employment in Austria and had standing to join the proceedings. The applicant had been living with his wife in Austria since 1991 and they had a daughter who was born in 1995. The applicant was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and his daughter had been granted indefinite residence permits (Aufenthaltsbewilligung). The applicants referred to Article 17 of the Geneva Refugee Convention and submitted that it should be applied by analogy to nationals of Bosnia and Herzegovina who had come to Austria before the civil war. They further referred to Article 23 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1.
20.  On 12 October 1998 the Vorarlberg Labour Market Service submitted its comments.
21.  On 19 December 2000 the Administrative Court dismissed the applicant company’s complaint and rejected the second applicant’s complaint.
22.  As regards the second applicant it found that none of his rights had been violated, as it was in principle for the employer to request the issue of an employment permit. It further referred to the case-law of the Constitutional Court according to which a decision whether or not to issue an employment permit did not concern a “civil right” within the meaning of Article 6 of the Convention.
23.  As regards the applicant company’s complaint, the Administrative Court noted that the official statistics showing that the maximum quota had been exceeded constituted documentary evidence which it had been open to the company to contest by adducing proof to the contrary. The company had, however, failed to make any valid objection to the Labour Market Service to the statistical evidence that the maximum quota had been exceeded. The complaint now made before the Administrative Court that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded was unsubstantiated and, in any event, inadmissible, as it had not previously been raised before the Labour Market Service.
24.  As regards the reference to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey the Administrative Court noted that those treaties were not applicable to the present case as the second applicant had never claimed to be a refugee within the meaning of the Geneva Refugee Convention and was not Turkish. It further noted that no right for the second applicant to take up employment could be deduced from the Universal Declaration of Human Rights or the International Covenant for Economic, Social and Cultural Rights.
25.  In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. This decision was served on the applicants’ counsel on 7 February 2001.
26.  Meanwhile, on 23 October 2000, the second applicant’s wife acquired Austrian citizenship. Consequently, the Employment of Aliens Act is no longer applicable to the second applicant.